Public Bill Committee

[Frank Cook in the Chair]

Frank Cook: Before we begin, I have a few preliminary announcements to make. Members, if they wish, may remove their jackets during Committee sittings, but will all Members please ensure that all mobile phones and pagers are turned off or at least switched to silent running? We do not want any disturbance.
I remind the Committee that there are money and ways and means resolutions in connection with the Bill and copies are available in the room. I should also like to remind Members that adequate notice should be given of amendments if they are to be eligible for selection. For a Tuesday sitting, amendments must be tabled by the rise of the House the previous Thursday and, for a Thursday sitting, amendments must be tabled by the previous Monday. As a general rule, I and my fellow Chairman do not intend to call starred amendments.
Not everyone is familiar with the process of taking oral evidence in Public Bill Committees, so it might help if I briefly explain how we will proceed. It will not only be helpful to you, but it will also be very helpful to me. The Committee will first be asked to consider the programme motion on which debate will be limited to half an hour. We will then proceed to a motion to report written evidence and then to a motion to permit the Committee to deliberate in private in advance of the oral evidence sessions. I hope that we can take both motions formally.
Assuming that the second of the motions is agreed, the Committee will then move into private session. Once the Committee has completed its deliberations in private, witnesses and members of the public will be invited back into the room and our oral evidence session will commence. I hope that that will be at around 11 am.
If the Committee agrees to the programme motion, it will hear oral evidence today and on Thursday. It will then revert to the more familiar proceedings of clause-by-clause scrutiny.

Bridget Prentice: I beg to move,
That
(1) the Committee shall (in addition to its first meeting at 10.30 am on Tuesday 3 February) meet
(a) at 4.00 pm on Tuesday 3 February;
(b) at 9.00 am and 1.00 pm on Thursday 5 February;
(c) at 10.30 am and 4.00 pm on Tuesday 10 February;
(d) at 10.30 am and 4.00 pm on Tuesday 24 February;
(e) at 9.00 am and 1.00 pm on Thursday 26 February;
(f) at 10.30 am and 4.00 pm on Tuesday 3 March;
(g) at 9.00 am and 1.00 pm on Thursday 5 March;
(2) the Committee shall hear oral evidence in accordance with the following Table
TABLE

Date

Time

Witness
Tuesday 3 February
Until no later than 12.20 pm
Ministry of Justice
Tuesday 3 February
Until no later than 1.00 pm
Law Commission
Tuesday 3 February
Until no later than 5.30 pm
The Coroners Society of England and Wales; INQUEST; the Royal College of Pathologists; Cardiac Risk in the Young
Tuesday 3 February
Until no later than 6.15 pm
Liberty
Tuesday 3 February
Until no later than 7.00 pm
National Society for the Prevention of Cruelty to Children; Barnardos Internet Watch Foundation
Thursday 5 February
Until no later than 10.25 am
The Magistrates Association; NACRO; Victim Support; Prison Reform Trust
Thursday 5 February
Until no later than 1.40 pm
Keir Starmer QC, Director of Public Prosecutions
Thursday 5 February
Until no later than 2.30 pm
The Law Society; the Criminal Bar Association
Thursday 5 February
Until no later than 3.00 pm
Justice for Women
Thursday 5 February
Until no later than 4.00 pm
Information Commissioners Office
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 14; Schedule 1; Clauses 15 to 21; Schedule 2; Clause 22; Schedule 3; Clauses 23 and 24; Schedule 4; Clause 25; Schedule 5; Clause 26; Schedule 6; Clause 27; Schedule 7; Clauses 28 to 31; Schedule 8; Clauses 32 to 38; Schedule 9; Clauses 151 to 154; Schedule 18; Clauses 39 to 48; Schedule 10; Clauses 49 to 55; Schedule 11; Clauses 56 to 82; Schedule 12; Clauses 83 to 100; Schedule 13; Clauses 101 to 119; Schedule 14; Clauses 120 to 124; Schedule 15; Clauses 125 to 131; Schedule 16; Clauses 132 to 147; Schedule 17; Clauses 148 to 150; Clauses 155 and 156; Schedules 19 and 20; Clause 157; Schedule 21; Clauses 158 to 162; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 4.00 pm on Thursday 5 March.
I am delighted to be taking the Bill through under you, Mr. Cook, and your co-Chairman, Mr. Gale. I know that you will both conduct the proceedings of this Committee in a fair and impartial way. This is an important Bill and it is important that it is subject to full and proper scrutiny.
The programme motion largely speaks for itself, so I intend to be brief. I just want to draw the Committees attention to one point. On Second Reading, the hon. Member for Cambridge suggested that our putting the data-sharing provisions into part 8 was an attempt to smuggle them through as though they were illicit contraband. Rather than be accused of such smuggling, we have worked the order of consideration so that the amendments to the Data Protection Act 1998 in part 8 will be considered immediately after the coroner and death certification proceedings in part 1. I hope that that reordering will meet with the agreement of not just the hon. Member for Cambridge but other members of the Committee.
There will be two full days for oral evidence followed by five days of the usual clause-by-clause consideration. There is always the possibilitywe have the flexibilityto sit a little later on Tuesdays if necessary, but I shall obviously leave that in the very capable hands of the Government Whip.
It might assist you, Mr. Cook, and hon. Members if I advise the Committee that, in broad terms, I will be leading on parts 1, 5, 6, 8 and 9 and my hon. Friend the Under-Secretary of State for Justice will lead on parts 2, 4 and 7. In the case of part 3, she will lead in the debates on witness anonymity and I will deal with the other chapters in that part. I look forward to a constructive and searching debate on the Bill and commend the motion to the Committee.

Edward Garnier: I associate myself and my hon. Friends with the Ministers remarks and welcome you, Mr. Cook, to the Chair. We also look forward to the chairmanship of Mr. Gale.
Like the Minister, we hope that this will be a constructive Committee. The last occasion that we sat under your chairmanship, Mr. Cook, was when we considered the Criminal Justice and Immigration Bill last year and, rather like London buses, Home Office and justice Bills follow each other in whizzing round the corner. My hon. Friends and I will do our best to provide grit on the road so that these buses can gain better purchase on the surface, but I have to say at the outset that this Bill is another plum duff. I accused the Government of producing a great, fat Bill last yearmost of it was duff; there were a few plumsand the same can be said of this Bill. I cannot guarantee to be as generous to the two Ministers on this Committee as I was to the Minister of State, Ministry of Justice, the right hon. Member for Delyn (Mr. Hanson), to whom I gave a Christmas pudding rather than a plum duff at the end of our deliberations. Unfortunately, the House of Commons shop does not sell plum duffs, so he had to make do with a House of Commons Christmas pudding that looked suitably like the kind of infernal device that one might throw at early 20th century Austrian archdukes.
This is another long Bill. It has 162 clauses and 21 schedules and each of the schedules is divided up into several parts. My complaint at this early stage is that this is too big a Bill and covers too many discrete subjects. It should be divided up into separate Bills. Of course, the Government are in a hurrytime is running out for thembut we will do our best to try to make sense of nonsense and to improve what is almost capable of being described as sensible. We will applaud where appropriate those provisions that we think will enhance the criminal or coronial law.
Although we may take a different view as we make progress, at this stage we can agree with the Ministers motion for the timetabling of the Committee, but we reserve our right to come back to seek adjustments if necessary. We look forward to constructive if sometimes controversial debate.

David Howarth: I am grateful to the Government for acceding to my suggestion that we move up consideration of the data-protection provisions in the Bill. Someone in opposition of a suspicion mind might think that all that has happened is that we have not spotted the contraband and that it is somewhere else in the Bill. To that degree, I agree with the hon. and learned Member for Harborough. This is a very long Bill that, at a conservative estimate, contains 28 different topics for consideration. It amends 56 pieces of previous legislation and, even in the time that the Committee has been given, it will be difficult to consider all aspects of the Bill properly. If at the end of our deliberations parts of the Bill have not been considered or have not been considered at the length or with the depth that they deserve, I hope that the Government will think generously about offering more than one day for Report. That has just happened with the Political Parties and Elections Bill, as the Committee got nowhere near discussing all the important matters that it raised. This Bill is even longer, even bigger and covers even more subjects. Although I make that important request, I do not at this stage intend to divide the Committee on the programme motion.

Question put and agreed to.

Resolved,
That, subject to the discretion of the Chairman, any written evidence received by the Committee shall be reported to the House for publication.(Bridget Prentice.)

Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.(Bridget Prentice.)

The Committee deliberated in private.

On resuming

Q 1

Frank Cook: We shall now hear oral evidence from the Ministry of Justice. For the record, would you like to introduce yourselves to the Committee, please?

Geoff Bradshaw: I am Geoff Bradshaw, and I am responsible for the coroners part of the Bill.

Ruth Allan: I am Ruth Allan, and I am responsible for the sentencing council part of the Bill.

Deborah Grice: I am Deborah Grice, from the criminal law policy unit. I am responsible for the substantive criminal law parts of the Bill.

Belinda Lewis: I am Belinda Lewis, and I am responsible for the data protection provisions.

Bridget Prentice: Thank you, Mr. Cook. The Bill is before us today because we want to try to deliver a more transparent, responsive and effective justice and coroner service for victims, witnesses, bereaved families and the wider public. The Bill is intended to ensure that victims and witnesses are at the heart of the justice system. The coroners part of the Bill aims to improve significantly the service that bereaved families receive from a reformed coroner systemit has not been reformed for a very long timeand will introduce a related new death certification system, which I hope will provide people with the necessary reassurance that there is independent checking of the causes of death. The Bill will also give vulnerable and intimidated witnesses, particularly in respect of gun and knife-related violence, the best possible protection from the earliest stages of the criminal justice process. The Bill will introduce a more consistent and transparent sentencing framework, as well as providing stronger inspection powers to improve public confidence in how data is held and used, removing barriers to effective data sharing, which will improve public services and the fight against crime and terrorism. In a nutshell, that is what we are trying to achieve through the Bill.

Frank Cook: Thank you. Before calling the first question, I remind all hon. Members that questions should be limited to matters within the scope of the Bill. We must stick strictly to the timings in the programme motion, which the Committee has agreed. I hope that those questions are within the framework of what we agreed in private. I hope that I do not have to interrupt mid-sentence, but I shall do so if I need to.

Q 2

Edward Garnier: I direct this question at either of the Ministers, and would be happy for either to answer. Why have you thought it appropriate to design such a lengthy and diverse Bill? It is 162 clauses long, has 21 schedules, which are divided up into several parts, and covers a huge number of discrete public policy areas. Why do you design Bills like this? [Interruption.] If you do not know, please say so.

Bridget Prentice: There is a bit of me that does not know. Parliamentary time plays a big part in putting together different groups of issues, but as I explained in my opening remarks about providing victims and witnesses with transparency and protection within the justice system, there is a logic to putting those things together.

Q 3

Edward Garnier: Could you explain a bit more about the logic?

Bridget Prentice: For example, bereaved families will be given a much better service in the coroner section as a result of the Bill, and they will receive a better service through the death certification process. Equally, victims and witnesses in the justice system might require better protection when they give evidence or when they are approached for evidence in any investigation. This is about protecting people and giving them confidence in the system. There is a logic and thread that goes through that.

Q 4

Edward Garnier: It is not a logic that I quite understand, at least not as currently presented. For example, how do provisions to do with child pornography or indecent pseudo-photographs tie in with the thread that you say runs through the Bill? How does the thread connect to the reform of the coroners system?

Bridget Prentice: The most obvious response is that it is another form of protection for children. My hon. Friend will go into the details of that part of the Bill if you wish.

Maria Eagle: There is an important but small provision in respect of this, which has arisen as a result of trends and concerns raised by the police and child protection agencies. There is a lacuna in the criminal law about those kinds of images, which are not based on real photographs but are increasingly being found. The Bill presents us with an opportunity to close that loophole with the aim of improving child protection as a result. It is a small part of the Bill, and I hope that members of the Committee will understand that we should not wait for a piece of legislation that is solely about the protection of children. The provision fits with the general theme of the Bill, which is to provide extra protection for victims in the criminal justice system. That is why it is there.

Q 5

Edward Garnier: When looking at the index of the Bill, a reasonable person could, quite legitimately, comment that Ministers have been running around the Department pulling things off shelves and sticking them into the shopping trolley to create a long Bill. Why has the legislative process not been managed in such a way that we have a discrete coroners Bill? We were promised one a while ago. Would it not be more sensible to run the reform of the coroner system through a discrete Bill, rather than tagging matters relating to legal aid, vulnerable and intimidated witnesses, and other substantive criminal justice issues on to this Bill?

Maria Eagle: There is always a question about balancing the legislative priorities arising out of urgent issues requiring the attention of Parliament. These matters are in the Bill because we believe that they will make a difference. They will assist victims and witnesses in the criminal justice system, and all those who come into contact with it, whether on the coronial or criminal law side of the Bill. As a Minister, one has to balance the priorities of each discrete provision that has an urgency and the appropriate legislative vehicle.
I understand that many hon. Members who get this thrown at them, and have to scrutinise the Bill in Committee, might have a slightly different perspective from Ministers who seek to make what we believe are important, useful and essential changes to the law. Making those changes is different from fulfilling the requirements and needs of scrutiny, and there is always a balance to be struck. As to where that balance should be, Ministers might feel slightly differently from members of the Committee who have to scrutinise the Bill. None the less, I hope that we all accept that the issues dealt with in the Bill are important. When criminal justice Bills involve law reform, they often have a Christmas tree-look about them because much is done in primary legislation that, in other fields, might be done in secondary legislation. There is always a danger of that. All I can say is that we will do our utmost to make sure that the Committee has every opportunity to scrutinise as much as possible all aspects of the Bill.

Q 6

Edward Garnier: Why did you not accept the recommendations of the Law Commission on the reform of the law of homicide? You picked out some bits, but left out others. That seems to have created a rather difficult picture for you, does it not, when attempting to reform an important part of the criminal law relating to the killing of other people? You picked some plums out of the commissions report, but left a lot of stuff behind, which couldif you two Ministers are right in your description of the shape and design of the Billperfectly properly have come into the Bill. It might have made it longer, but we are used to that.

Maria Eagle: The Law Commission came up with a comprehensive proposal for the reform of the entire law of homicide which was elegant and which fitted together very well, but which did not meet with the approval of all the stakeholders. The Committee will recall that the commission suggested that we should replace murder or manslaughter with murder I or murder II or manslaughter. It was a significant and big change, and it did not meet with total approval among stakeholders. The commission also accepted that there is a significant issue with the partial defences under the Bill and that that was appropriate. It might not have wished the Bill to be formed in such a way, but it accepted that it was possible to take a partial approach and to deal with the partial defences before looking at the entire structure, which is what we have decided to do.
We think that there is enough of an issue about the partial defences to justify reforming them before going on to a second stage to see whether or not the entire restructuring that the Law Commission suggested is the right way forward.

Q 7

Edward Garnier: May I ask one further question? Clause 58 repeals a provision that was introduced under the Criminal Justice and Immigration Act 2008 on Report. That provision has not even come into force, yet you are repealing it already. Your Government have a history of passing lots of Bills that repeal other enactments that were recently passed. The Criminal Justice Act 2003 is a classic example of that. Huge chunks of it were repealed before they were due to come into force, and parts that have come into force have also been repealed. Can you guarantee that no parts of the Bill under discussion, as currently drafted, will be repealed before your next Criminal Justice Bill comes into effect, and that we can work forward at least on a moderately planned basis in line with this particular Bill, or will new stuff be brought in on Report?

Maria Eagle: It is a complicated question. We certainly do not put things into legislation that we intend to repeal before bringing them into force. I do not believe that any Minister has done thatfrom any party. The clause to which the hon. and learned Member for Harborough referred was inserted into the previous legislation by the House of Lords. It was not accepted by the Commons. In fact, when it was returned to the Commons, it was rejected decisively by 338 to 136. The so-called freedom of speech provision relating to incitement of homophobic hatred was not something that the Government ever accepted was necessary. Indeed, we believe that it makes the substantive offence extremely confusing and, as well as being insulting, it would make it

Q 8

Edward Garnier: Forgive me, I do not want to discuss the merits or demerits of clause 58.

Maria Eagle: I am trying to explain why the Government want to remove a section that was passed under the previous legislation. It was an amendment that the Government did not want. I said clearly on the Floor of the House that we would return to it. We might therefore see the matter as fulfilling the promise to return to it. We said that we would do that, and we are doing it at the first opportunity.

Q 9

Edward Garnier: Do you not understand that that leads to cynicism about the construction of legislation?

Maria Eagle: I do not accept that. There are strongly held arguments on both sides of this issue by those who believe strongly in their views. It is an argument that will be raised again in Committee, when we get to that clause. It may come back to the Floor of the House on Report. However, the Governments position has been clear on this. Clarity and pursuing a policy that one believes in engenders exactly the opposite of cynicism.

Q 10

David Howarth: On that point, as the person who called the final vote on the last bit of ping-pong because I wanted to protest against the Government giving in on that last round, I confirm what the Minister has just said. The Government were plainly coerced by a timetabling issueof their own makingand I am not surprised that they have returned to the matter.
To return to the law of murder, I am disturbed about this piecemeal approach.

Frank Cook: While you are doing that, David, could you speak up a little?

Q 11

David Howarth: Sorry, I will sit nearer the microphone. The piecemeal approach to the law of murder is unsatisfactory. The impact assessment on the Bill says that the proposed changes in the partial defences will increase the number of people convicted of murder as opposed to manslaughter by between 100 and 200. I raised that on Second Reading, but it was not the correct setting to do so, so I am asking again: who are those people? What kind of defendant will, as a result of the proposals, now be found guilty of murder rather than manslaughter?

Maria Eagle: We are seeking to make changes to the partial defences. The concerns that the Law Commission reported on are accepted more widely than the solutions that have been adopted. But there is a widespread acceptance about the nature of the problems of the partial defencesparticularly provocation. That particular defence may be too easily accessible to those who kill in anger. The crime is often characterised as jealous partners who kill in anger and the defence is not sufficiently accessible to those who kill in fear of serious violence.
There have been developments in the case law through the courts to try to accommodate this, but there is no obvious place in the defence, as it currently stands, for fear of serious violence. There are also concerns that all evidence of provocation has to be put to a jury, even where it is unmeritorious and not raised by anyoneeven the defencewhich can cause concerns. What we therefore sought to do in respect of the change to a provocation defence is to raise the threshold generally, so that those who kill in anger can succeed in having their conviction reduced to manslaughter only in exceptional circumstances. So, we are raising the bar of the availability of that defence and extending it to cover those who kill in fear of serious violence as well as those who kill in anger. On that basis, I hope that he can see the kind of person who might now be caught and convicted of murder rather than manslaughter, if these provisions go through. In respect of provocation, there is an increasing threshold and a slight change in the way the remaining partial defence works. We do not believe that the changes we are proposing to diminished responsibility will change the numbers enormously; it is really just a clarification of the way in which that defence works.

Q 12

David Howarth: I am worried about the changes to diminished responsibility. By making that defence more precise, and with reference to recognised medical conditions, there is a danger of people who perhaps come under the category of those with learning disabilities who might not be said to have a recognised medical condition, being caught by the law of murder rather than manslaughter. I am worried about that.
On the provocation defencethe replacement of provocationwhat is the evidence for the figure of 100 to 200? If you look at the standard legal databases to see what is going on in the provocation defence, you will see that convictions for manslaughter on the grounds of provocation where there has been sexual infidelity are rare in recent years. Normally what happens these days is that such cases either succeed or fail on diminished responsibility, so provocation does not come into it. I do not see the 100 cases. On the serious violence side, the numbers go the other way. For the most part these days, in the battered wives cases, the law goes in their favour. I do not see that moving in the way that the Minister says either.
The problem is that, if you look at the words in the Bill, they seem to suggest a rather different sort of person being found guilty of murder. For example, there are such people as those raised in the Doughty decision of the 1980s. A stressed-out parent who loses his or her temper and strikes a child, could be guilty of homicide, yes, but the decision in that case was manslaughter not murder. Those defendants would not qualify any more, because they do not have any justifiable sense of being seriously wrong.

Maria Eagle: If I can reassure the hon. Gentleman in this respect, I can see where he is coming from. I want to make it clear that the calculation that he refers to is about the impact on prison places, which is calculated on the basis of length of sentence as well as number of convictions. What we expect is perhaps an additional 10 to 20 convictions a year, but when planning for prison places, we always have to take into account the likely length of sentence resulting from such convictions. In the various magical ways in which National Offender Management Service does that, the estimated result, in a build-up over about eight years or so, is that we might have to account for 100 to 200 extra prison places. We are not saying that we expect 100 to 200 extra convictions for murder as opposed to manslaughter, but that we expect a small number of 10 to 20 or so. I hope that that reassures him.
In respect of the Doughty case, as far as we are concerned, it is not intended that that kind of caseunless it can fit into diminished responsibilityought to count as provocation. We are trying to put the bar higher and not to bring it down.

Q 13

David Howarth: May I ask about loss of control? That is the standard problem in battered wives cases. They find it difficult to come within the existing defence of provocation, because of the requirement of loss of control. The obvious way to reform the law to help battered wives is to get rid of the idea of loss of control. The Government have kept that idea in the Bill, but how does that help? Clause 41(2) talks about loss of control not being sudden, but it is not the suddenness of the loss of control that matters; it is having to prove some sort of loss of control.

Maria Eagle: I understand the point. After looking carefully at the matter, we decided that there might be a small number of cases at the top end where a loss of control occurs and that we would still want to be capable of reducing what would otherwise be murder to manslaughter. That would be a much smaller number of cases, which is why we have tried to capture the small number of cases envisaged using the new formulations.
It might be helpful if I give an example of some instances of loss of control, where we would all reasonably think that what had happened had pushed the person beyond the very high threshold, such that it ought still to count to reduce murder to manslaughter. For examplethis is not a real casesuppose a survivor of genocide came across one of the perpetrators in the street, which is not unknown and has happened. Suppose the victim recognised the perpetrator, and after confronting them and being laughed at or taunted, lost self-control and killed them. We would still want that kind of case to be defended by the concept of a loss of self-control. There are a small number of cases at the top end where that is still a useable concept that adds something to the law.
In these changes, we are trying to lift the bar, so that there are far fewer cases, while extending the law to incorporate the fear of violence that battered wives cases first raised as an issue. Those cases tended to make critics think that the way the current law of provocation works is not fair to those who kill out of fear, but it is perhaps overly generous to those who kill out of anger. That is why we still have that element of loss of self-control. If we did not believe that there were such cases, we would seek to abolish the concept completely in law. However, there are some instances where it might still be justifiable which is why it is there.

Q 14

David Howarth: But the fear of serious violence requirement is about not only the fear of serious violence, but cases where the defendants loss of self-control was attributable to serious violence. There still needs to be that loss of self-control. That leads to the central example in the battered wives case. Suppose a wife is abused for a long time, and after a particularly bad incident of being beaten up she waits for her husband to go to sleep and kills him. I do not see the loss of control in that case, but I think that under the Bill that person would be convicted of murder.

Maria Eagle: It depends whether they fitted into the fear of violence element.

David Howarth: But they had to lose control.

Maria Eagle: The proposed changes mean that the loss of control does not have to be sudden. Some of the battered wives cases were at the stretch of the statutory wording but fitted into the current law, because they were able to show battered-wife syndrome or psychological effects proving that a loss of self-control had occurred, albeit on a slower basis. It is the removal of the requirement for it to be sudden that has allowed those cases to fit in. Without the requirement in the reformed partial defence for some self-control, we would open the door to cold-blooded killings fitting into the defence. There has to be a loss of self-control.

David Howarth: Mr Cook, do you want me to go on to data protection now?

Frank Cook: No, I want to stick to this section if you do not mind.

Brian Iddon: I have a question on death certification. I hope that it is in order.

Frank Cook: No. We had you down on murder, infanticide and suicide. Assisted suicide is at the end.

Brian Iddon: Then I will wait.

Frank Cook: Okay. So if we have finished the first section, we will move on to the possession of a prohibited image of a child. If nobody is interested in that, we will move on swiftly to witness anonymity. Alun Michael.

Q 15

Alun Michael: On the issue of the possession of images, rather than not being interested in it, it is that we do not feel a need to probe it at this stage. It will come up in later evidence.

Frank Cook: Semantics.

Alun Michael: Very important semantics.

Frank Cook: Yes indeed, carry on.

Alun Michael: It is easy to argue on either side about witness anonymity, and to show examples where not knowing where evidence is coming from makes it difficult for an innocent accused to provide a defence. However, most MPs will have had experience of places where intimidation of people within a community for an extended period means that the protection of witnesses is the only way that can be tackled and issues can be brought before the court. How will the drafting of the clauses ensure no unintended consequences on either side of that difficult balance?

Maria Eagle: The Bill re-enacts effectively with slight modification the provisions of the Criminal Evidence (Witness Anonymity) Act 2008. Many members of the Committee will remember that as a swift and in many ways exemplary piece of parliamentary activity to deal with a problem that had arisen suddenly, thanks to a House of Lords judgment that had many practical implications for the confidence of the public in the criminal justice system. As in any proceedings, witness anonymity has implications for fairness to the defendant and for the ancient rights of the defendant to confront their accuser, which was what the whole issue was about.
The legislation came into force on 21 July and, from what we can see, it appears to be working relatively well. Some members of the Committee who practise in the criminal courts may have their own view about whether it is working well, but it seems to us to be working well and to strike a correct balance between protecting the rights of the defendant and making sure that witnesses who come forward to give what can be vital evidence to make sure that justice is done in some pretty difficult and serious cases will be fully protected, when that is appropriate, and have their anonymity guaranteed.

Q 16

Alun Michael: Some people have criticised the fact that an order may be granted to prevent serious damage to property. How would you justify that?

Maria Eagle: If, in the course of an intimidatory tactic, someone threatened to burn down a persons house if that person gave evidence, that might be damage to property, but that might well be enough to stop a witness coming forward and be willing to give evidence, just as much as the threat of physical violence might be. Such matters are not for me, as a Minister, to decide on, but very much for the judge in the case to bear in mind when the prosecution makes an application to the court to protect a witness by the use of anonymity. It is something that a judge in a particular case with the circumstances that he is looking at will make a judgment about.
It might be helpful to the Committee if I gave some statistics about what has happened since that legislation came into force, because they might be illuminating. The Crown Prosecution Service told me that 135 anonymity applications had been made to the courts up to the end of December following the passage of the legislation, of which 129 were granted and six refused. Of the applications granted, 43 were civilians; 35 were undercover officers; 49 were test purchase officers; and two were other police officers. All six applications that were refused were for civilian witnesses and, of those cases, three were in the magistrates court, one was in the youth court and the rest were in the higher court.

Q 17

Edward Garnier: May I interrupt and ask the Minister a question about the figures, which were very helpful? How many cases in the list were ongoing prior to the passage of the emergency legislation?

Maria Eagle: That I cannot say without trying to find out.

Edward Garnier: Do you think that you could?

Maria Eagle: I shall do my utmost. Whether or not that information is available, I do not know, but I shall certainly come back to the Committee with a follow-up in that respect.

Q 18

Alun Michael: Those figures show that a majority of non-civilian cases have come up. One of the queries was that clause 71(3)(b) provides that a witness anonymity order may be granted in cases where there is
real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).
That has been interpreted as being intended to protect undercover officers. The Minister suggests that that protection is being afforded in a large number of the cases when an application is made. Why is that clause necessary? If it is to protect undercover officers, why does it not actually say so?

Maria Eagle: That is what it is for. I made that clear during the passage of the legislation. I suspect that it is like that because the Bill had to be done very quickly. I made it clear that that provision meant national security and undercover work of the police and relevant agencies, and that the reason behind such anonymity was to enable the re-use of undercover officers. That is specifically mentioned in the Strasbourg jurisprudence as an acceptable reason as well. It is always important in any application before a judge that the judge can choose whether or not it is appropriate in the individual circumstances of the case, and he or she would certainly be able to do that.

Q 19

Alun Michael: Given the helpful and illuminating figures that you have put before us, are you satisfied that sufficient use is successfully being made of the cases that I have mentioned of community terrorisation or intimidation, which I think were in the minds of many MPs in supporting the legislation previously and now?

Maria Eagle: As far as we know, it is. It certainly would not be for us to suggest that there ought to be an increase in those sorts of order. We shall try to make it as easy as possible for witnesses to extremely serious crimes, such as homicides either involving the use of guns and knives or related to gang-based crime, by bringing forward in this legislation the earlier orderthe investigation anonymity order. That might reassure witnesses to such serious crimes enough to make them come forward to give their evidence in the first place, long before a case gets to court. In such instances, if that evidence were to be given at a trial, it would be for the court or the judge to decide whether to make a witness anonymity order.
By including provision for the investigation anonymity order, the legislation seeks to provide extra reassurance to members of the public who see a serious crime of homicide relating to gang activity or involving the use of knives or guns that they can come forward and that their identity will be protected. It is well knownas many Members who have such problems in their constituencies are awarewhat a climate of fear can be created by gangs trying to control geographical areas.

Frank Cook: You tapped a vein of gold there, Mr. Michael.

Q 20

Tim Boswell: The statistics are very useful, Minister, and I understand what you are trying to do. In the failed cases, of which there were six, can you indicate whether there is any evidence as to the nature of the failure? For example, were there cases where it was impossible to establish a threat to personal safety, but where there might have been a real threat to propertysomething that would be brought in under the new lawas that would seem to be justification for what you are proposing? Equally, although it is more difficult to get a handle on this, were there cases where applications may not have been made or were frustrated, because, although you could go as far as the threat to property test, you could not actually demonstrate at the time that there was a direct threat to the individuals personal safety? I just want to get a handle on how valuable it would be extend the existing provisions.

Maria Eagle: I will have to go back to the criminal justice agencies, and the Crown Prosecution Service in particular, for more specific detail about the applications that were refused. I shall do my utmost to find that out if it is possible, and will come back to the Committee. I do not have the information at present, but it would be helpful if it was available. I will bring it back to the Committee.

Q 21

David Howarth: That will be very helpful. I have two other questions about the numbers cited. First, how many times were special independent counsel appointed in any of those cases? That was one of the big substantive problems in the Billthere were lots of technical problems in the Bill, which we shall have to come back to, because we do not want to go into them nowbut that was the one area of policy on which there was some disagreement. Secondly, how many appeals have there been and what kind of appeal activity has there been? What have the appellate courts said about the provisions?

Maria Eagle: There have been two requests for special counsel made and granted during the relevant period. Of all the requests made, and there have been two, they have been granted. In respect of appeals, there is the Myers case, is there not?

Q 22

David Howarth: That was a transitional case though, was it not?

Maria Eagle: Yes. I shall have to come back to the hon. Gentleman on appeals beyond those that we know about. It may be a little soon to have huge numbers in that respect, but I shall see what is available and include that in my further letter to the Committee.

Frank Cook: Now, for practical purposes and out of sequence, I shall go immediately to coroners.

Q 23

Henry Bellingham: My first question for Mrs. Prentice is about the new framework. Obviously, broadly, we shall have national oversighta national coroner and a national servicebut also, quite rightly, we shall keep the best of the localism that is in place. One of the concerns that local authorities or police authorities will have is funding and resourcing. Expectations will be raised by the changes in the Bill, but how are resources going to be made available to ensure that we have, across the country, an effective and efficient service?

Bridget Prentice: Mr. Bellingham makes an important point about the national and localised parts of the new coroner service. There has been a debate about whether it should all be nationalised or localised. We think that having a national chief coroner who can set standards and give guidance and direction will raise standards across the board, because in the past there has been a great differential in the different coronial areas. On the whole in the consultations it was felt that keeping a localised service was still what most people preferred. It will therefore be funded locally, as it is now, by local authorities or police authorities. HoweverI am pleased that Mr. Bellingham has raised that questionmoney will be forthcoming from the Department in setting up the service. There will be something in the region of £10 million in set-up costs and another £6.5 million in annual running costs, so we shall be putting in a substantial amount of money to ensure that the service makes the kind of difference that we want it to make for bereaved people.

Q 24

Henry Bellingham: There are some detailed questions that we shall come on to in Committee, but will you explain why you feel that it has to be a lawyera barrister or a solicitorwho fills those posts, rather than a suitably qualified medic? Some coroners practising today are doctors, and they are doing a superb job. I note that the Bill says that they will be able to continue, but that there will be a phasing-out of the medics. My concern is that we may be excluding a potential pool of good coroners in the future, if we do not allow medics to fill such positions. I speak as a lawyer, so I have a vested interest.

Bridget Prentice: If you wish to become a coroner, Mr. Bellingham, I am sure that we can arrange suitable training. I am sure that you would be an excellent coroner.
This is a balance of judgment again. The chief coroner and deputy chief coroner will be High Court judges, so it is probably appropriate that coroners are judicially trained, if I may put it that waylegally trained. Yes, there have been some very good coroners from a medical background but, alongside the coroner service, medical advisers will be able to give that medical input and advice to the coroners. In the consultation on this part of the Bill, of which there was a lot, it was felt that it was appropriate that they should be legally trained, because it would give them the understanding of the justice system in a way that was perhaps not always available in the past.

Q 25

David Kidney: If, in the future, a local authority were unreasonably to starve a coroners service of resources, would the Department back the local authority in undermining the coroner service in that way? Do you accept that there are no provisions in the Bill enabling you to do something about it, even if you did not agree?

Bridget Prentice: We certainly would not back a local authority that starved the coroner service of funding. There is a provision in the Bill that allows the chief coroner to investigate and make recommendations, which will highlight where an authority is under-resourcing the service. Through the whole panoply of Government resources and communications with local authorities, we would make it clear very quickly to a local authority that they could not continue to behave in that way.

Q 26

David Kidney: Should there be a power, eventually, for the Ministry to step in if that is the caseespecially if the chief coroner is saying that that is unacceptable?

Bridget Prentice: That is something that we would have to consider. We would have to discuss the matter with colleagues in the Department for Communities and Local Government, if a local authority were to behave that badly, which would be similar to the situation with, as I believe that you are suggesting, schools and other services.

Q 27

David Kidney: These things happen, Minister.

Bridget Prentice: They do. It is certainly something that we would have to consider for the future. But I would hope that, as a result of this, local authorities would take their coronial service very seriouslyI believe that most of them do.

Q 28

David Kidney: I have a few more questions about resources. The Secretary of State seemed quite sympathetic on Second Reading about the limited access to representation currently at the inquest. He clearly does not want to open the floodgates to every coroners court hearing, with lots of lawyers being unnecessarily present.

Bridget Prentice: Certainly not.

Q 29

David Kidney: Would you be willing to consider an amendment that widened the present discretion that the Legal Services Commission has to grant legal aid to people with good reason for representation at an inquest?

Bridget Prentice: The discussion on Second Reading was a good one, and we want to look at it more closely. It is also important to put on the record that legal aid is available at inquests at the moment. Admittedly, it is in a limited fashion, but it is available, including at military inquests. That is not always as well known as it ought to be. We would certainly look at further representation. However, we must remember that inquests are not adversarialthey are inquisitorial and involve findings of fact. I do not want to see panoplies of lawyers at inquests, if we can possibly avoid that. It is the job of the coroner to find the fact.

Q 30

David Kidney: That is a helpful answer. My last point is about resources. On Second Reading, I mentioned the rule 43 reports that coroners can make now to draw attention to ways in which we might prevent similar deaths in the future. That is continued in schedule 4, but Liberty says that at the moment it is a weedy propositionthere is a report, but nothing seems to happen as a result of it and no one takes any notice. Do you agree that there should be some strengthening of the procedure to highlight the fact that the coroners have made these recommendations and that someone, somewhere should do something about it?

Bridget Prentice: I am certainly open to strengthening it, if it were felt that that was necessary. But the chief coroner will lay a report before Parliament, so it can then be highlighted through the parliamentary procedure. However, I would be happy to consider strengthening that part, if it were felt that it was not going to achieve what we want to achieve, which is a better service as a result of a rule 43 investigation.

David Kidney: Again, that is helpful, thank you.

Q 31

Jennifer Willott: I want to return briefly to the issue of resourcing and pick up on the issues that Mr. Kidney just raised. There seems to be potential for a problem between lack of local resourcing and the implementation of national standards. Are there any proposals to do things such as lay down more prescriptive minimums for local authorities, taking account of the funding already available, when doling out the money that the Minister has mentioned in respect of the central subsidy to run services? Some areas have problems with a lack of resources. Higher standards are obviously to be welcomed, but what can be done to guarantee that?

Bridget Prentice: I think that one of the first things that the chief coroner might do, although I do not want to pre-empt them, is to look at resources across the country and see what is available and what local authorities are providing. I know that there are examples of coroners who do not have adequate offices or places to conduct an inquest properly. There is a lot of work and discussion to be done to ensure that we raise standards right across the board. I think that we will probably find that some of that can be done without additional finance. With a bit more imagination in the use of public buildings, the quality of accommodation could be improved.
The other thing that the chief coroner will be able to do is to look at exactly how a local authority spends its resource for coroners and give advice on how best to do that. As I have said, with the report to Parliament and the Department, we would have to have discussions with colleagues about whether local authorities were funding the service properly.

Q 32

Jennifer Willott: How does that relate to the introduction of the proposed medical examiner system? It seems to me that it has been widely welcomed, but it will build in some of the problems in the coroners system. It will be locally funded but centrally monitored. We already have local authorities and police authorities providing support and resourcing to coroners. The ME provision will be resourced by local health boards in Wales and primary care trusts in England. There seems to be quite a lot of potential for nobody to fund it properly, for everybody to think that someone else will put in the resources and for us to end up with a gap. What can be done to ensure that that does not happen?

Bridget Prentice: I feel as though I am burdening the chief coroner with a great dealindeed, I probably ambut part of the reason why we are going to have one is to ensure that that resourcing is available. You have mentioned the medical examiners, which is an important point. The medical examiners will be able to look at deaths and death certification in the process. As a result, there will probably be a significant reduction in the number of cases that have to go to the coroner. At the moment, there is a great deal of confusion among some medical practitioners about whether they need to report deaths to the coroner. With the medical examiner as the gateway, fewer cases will go to the coroner, which will free up resources that would otherwise be used on unnecessary inquests.

Q 33

Jennifer Willott: One thing that appears to have happened in the past 10 years or so is that the number of inquests seems to have increased by more than 40 per cent., so clearly reform is needed.
I suspect that the answer to my next question is, It will be given to the chief coroner. Improved standards and higher quality expectations are laid out in the Bill. Will there be any way to ensure that the standards will be met, if the number of inquests rises further? Will there be regulations concerning the number of coroners, or will additional resourcing be tied somehow to ensure that quality continues rather than dropping, if the number of inquests increases?

Bridget Prentice: Yes. On the point about increasing inquests, in recent years there has been in some parts of the country an over-cautious response to sending cases to the coroner. One big factor will be proper training for coroners, which will be funded centrally to ensure that standards are raised and maintained. I hope that you are assured that we will ensure that that happens. Again, if we need more coroners, we will have to recruit more coroners.

Q 34

Jennifer Willott: My final question is about the posts of chief coroner and deputy chief coroner. Why does the Bill make it clear that coroners will not be able to apply for those posts, and that they will have to be filled by High Court judges? It suggests that there is a question about the ability of coroners, but that is unfair. The Coroners Society has flagged up a concern that the expertise coroners build up would be lacking from the central oversight.

Bridget Prentice: We made the chief coroner and deputy chief coroner posts open only to High Court judges after discussions with the Lord Chief Justice, and it was felt that such people would have the appropriate leadership skills and judicial experience. I understand the Coroners Societys concern that there now seems to be a ceiling on whether they can become the deputy chief coroner, so I should like to explore that matter further. We want to have high-quality coroners and there ought to be a career path for them. At the moment, however, there are some practical difficulties with opening the positions up to senior coroners, but I should like to have further discussions with the judiciary about whether there is a way for coroners to get other judicial experience. The way in which the Bill is currently set out and the system will work means that they would have to become district judges, for example, get their experience that way and return to the coroners system. I would look to see if there was another way of achieving that, however, because I understand that there are some excellent senior coroners, and it would be a shame if that expertise were not kept and used in the whole system.

Q 35

Tim Boswell: Briefly, Minister, I have three quick questions. First, in carrying out investigations, the chief coroner will presumably have the right either to do so privately or to make conclusions public. You talked about transparency earlier, but I imagine that there might also be cases whereby a coroners competence to continue, whether because of medical illness or otherwise, was raised. There might need to be discrete inquiries and a retirement might take place. I presume that the default mode will be a public investigation and a conclusion on the record both for you, as Minister, and for us, as the general public.

Bridget Prentice: Yes, absolutely.

Q 36

Tim Boswell: Secondly, on resourcing, you will be familiar with the discussions about military inquests and the strain on the coroners involved. That may not be the only case in which a particular need arises, however. For example, there could be a rash of industrial-induced deaths, from mesothelioma or whatever, and it might concentrate in a cluster. Would it be for the chief coroner to make public recommendations to you, and, ultimately, for you to resource that spike in the workload in a coroners area?

Bridget Prentice:There was a problem with the military inquests and we resourced that by putting extra money into the two areas where they were being held. Under the new system, such inquests will not necessarily be concentrated in Oxford or Wiltshire, as there will be the opportunity for bodies to be repatriated closer to their families. That is one change.
The example that you gaveor a terrorist attack, or something big that could be termed a national emergencywould put great strain on a particular coroner. We are in discussions about how that could be resourced and funded.

Q 37

Tim Boswell: That is really helpful and leads on to my final question. Within the terms of the Bill, can you confirm whether what might be termed the transfer of cases will be easier? That is in relation partlyand I hope primarilyto the wishes and convenience of the next of kin. I presume that it will be part of the chief coroners remit to look at the distribution of resources. In a hypothetical situation, if a coroner in an adjacent county was relatively idlein Oxfordshire vis-Ã -vis my own county of Northamptonshire, for example, or Wiltshirecould the case be transferred? At the moment, my experience has been that coroners are, perhaps justly, jealous and proud of their own jurisdictions. Perhaps it will be easier in the future to move things around.

Bridget Prentice: That is absolutely right.

Q 38

Tim Boswell: Will the chief coroner broker that, so that representations can be made if the family or the local authority do not want that?

Bridget Prentice: Exactly. It would be for the chief coroner to make those directions.

Q 39

Henry Bellingham: Briefly, I want to ask the Minister about clauses 11 and 12. This is the most controversial section of this part of the Bill and we will debate it at length in Committee. Existing powers are in place to prevent the disclosure of harmful material: there are public interest immunity certificates, reporting restrictions and so on, and we are talking about only very few inquests where this will apply. Do MinistersMrs. Prentice, in particularfeel that damage will be done to the credibility of the coronial service if these clauses become sections in the new Act? Does she feel that the damage done will be worth it for the benefits that accrue? We are talking about so few inquests, and powers are there already to prevent harmful material from being made available.

Bridget Prentice: No, I do not agree. It is right to say that this will affect only a tiny number of inquests, and not some of those that have been mooted in the mediait will not affect military inquests, for example. At the moment, where sensitive material has to go before an inquest, it can be redacted. However, in cases of extremely sensitive material relating to the security services, it might be that the coroner would need to see the evidence. The family can be involved in all other parts of the inquest. This would apply only when dealing with extraordinarily sensitive material. That is why clause 11 is necessary.

Frank Cook: Mr Howarth, as the last inquisitor on this section, may I ask that once you have spent your rounds on this particular target, you adjust your sights and concentrate on the section on sentencing?

Q 40

George Howarth: I will try to comply with that target-shooting analogy, Mr. Cook. I have a brief point on the coroners provisions. I have read them and the notes on clauses. On Second Reading, I highlighted the difficulties that bereaved families experienced in the Hillsborough inquest. It is not clear to me how the reforms will apply in a case where, for example, instead of there being an inquest about one particular death, there is a series of mini-inquests about deaths that took place within a wider disaster. I suspect that asking the Minister to speculate on how that will work would be asking rather too much. She may not be able to do that. Will she consider preparing a memorandum on how she sees the reforms working in that sort of case?

Bridget Prentice: I will happily do that. I will not speculate too much, except to say that under the reformed system there will be proper training for coroners in dealing with multiple deaths and therefore with a wide variety of families and kinships.

Q 41

David Howarth: If I may interrupt, I am not talking about the conduct of coroners, but about the process.

Bridget Prentice: I will come back with a memorandum on how we envisage the process taking place.

Q 42

George Howarth: I am grateful. I will move on to sentencing as you requested, Mr. Cook. I have three, hopefully, quick points. I should declare an interest in that I sat on the Gage working party, which considered the Carter report that led to some of these provisions.
First, there has been speculation about the role of the Lord Chief Justice in the new enhanced sentencing commission. The Gage working party took the view that it would be asking too much of him to chair the commission. However, there must be a role for him. What does the Minister think that role might be?
Secondly, on the balancing of correctional resources with sentencing, on Second Reading the hon. and learned Member for Beaconsfield (Mr. Grieve) said effectively that to try to do that would be to undermine the principles of our criminal justice system. I think that he misunderstood slightly what is being proposed. Will the Minister say how there can be judicial independence while forecasting what correctional resources are necessary to deal with the totality of sentencing over a given period?
Finally, will the Minister comment on any role that Parliament might have in dealing with sentencing guidelines that come from the new enhanced sentencing commission?

Maria Eagle: First, may I say how useful it will be for the Committee to have you present, Mr. Howarth, when we get to this part of the Bill?

David Howarth: Too kind.

Maria Eagle: You will certainly keep me on my toesnot that other Committee members will not. It will be helpful to have the experience you bring from having sat on the Gage working group.
On the role of the Lord Chief Justice, the new council will have a judicial majority and a judicial chair. The Lord Chief Justice will appoint those members in consultation with the Lord Chancellor. Similarly, he will be consulted by the Lord Chancellor, who will appoint the non-judicial members of the council. He will certainly have an important role to play in the composition of the individuals who sit on the council. As head of the judiciary, he has an important general role. It is probably correct that he is too busy and has too many other important things to do to take a day-to-day part in the councils activities.
The intention of establishing the council is not to produce a fetter to wrap around individual judicial office holders in doing their jobs, whether they be magistrates or judges. The Gage working group made it clear that it did not think that correctional resourcesI hate to use that horrible phraseshould be tied to the work that was part of what the council took into account when producing its guidelines. That is not the intention. The Government agree with the recommendation from the Gage working group that they should not be tied together. I can make it clear that there will be no connection between individual sentencing decisions and correctional resources. No obligation will be placed on a sentencer in a case to take resourcing into account when making his or her judgment and dispensing justice as judges and magistrates do.
There will be a big improvement in the system of data collection and analysis provided by the council, which will be able to predict the impact of its guidelines on correctional resources and will give policy makers and those responsible for finding the moneyMinisters and officials in the Departmentmuch better and clearer information about the implications of sentencing practice. That is the intention. I hope that I can provide substantial reassurance to Committee members and those in the wider world who fear that the purpose of the sentencing council is to tie sentencing decisions in individual cases to the available resources for prison places. That is neither the intention nor what the Bill will do, if enacted in its current form.
On the role of Parliament, the Justice Committee already has a role in considering such matters. We hope to ensure a continuing role for the Committee, and we will be happy to hear from its Chairman, who is not with us todayhe is not on the Bill Committeeabout what he believes is the best way to proceed. We do not anticipate Parliament having the capacity by regulation to implement the sentencing guidelines, but we expect it to take its usual interest in such matters. We will consider ways in which to achieve that.

Q 43

Edward Garnier: I, too, must declare an interest. If this Bill becomes an Act, as a sentencer, I shall have to comply with the Sentencing Guidelines Councils directions. Can you give us an example of how the point about correctional resources will affect a particular sentence? Sitting as a sentencer, will the judge or magistrate look at guidance and read, The guideline sentence for such and such a crime is x number of years, with an addition reading, but we are a bit short of prison places this week? Can you explain it in practical terms?

Maria Eagle: No, there will be no such addition to the guidelines for individual sentences.

Q 44

Edward Garnier: What is the practical difference? Apart from the duty to follow, which is new, what is the real difference between what is currently in place and what is proposed?

Maria Eagle: There will be a duty to follow, as you put it, subject to an interests of justice test. It will always be for the sentencer to decide, on the basis of the facts, and the aggravation and mitigation in front of him or her, what happens in an individual case. Although there will be an enhanced duty to follow the guidelines, there will be ranges and the capacity for the sentencer to depart from the guidelines, in the interests of justice. It is for the sentencer to decide what is in the interests of justice. There is no fettering of discretion. The real difference is that there will be much more information and monitoring of what is happening, and of the impact of the guidelines and the sentences.

Q 45

Edward Garnier: Will that information be for the use of Ministers and public policy makers, or for the use of sentencers? What is the point of collecting the information if it is not to influence sentencers?

Maria Eagle: It ought to be useful for all, but there will not be an obligation on the individual sentencer in an individual case to take into account available resources, such as the local prisons. That is not what we seek to do. There will be more monitoring and information about the impact of sentences on rehabilitation and punishment, and there will be more information about the variation in sentencing practice from area to area. There will be more and better information, and more monitoring, which will be available for both policy makers and sentencers. There will be no commensurate obligation for a sentencer on an individual case to take into account available resources, such as what prison places are like locally.

Q 46

Edward Garnier: Is not the more intellectually honest position to take this: wethe Ministry of Justicewill collect this information, and based on that information, we will advise judges to alter their sentences according to the resources that are available in any particular aspect of the correctional system?

Maria Eagle: No, Ministers will not be doing that.

Q 47

Edward Garnier: Will you not be placing on the judiciary an additional factor? Beyond the facts of the case, judges will also be influenced by the information that is pouring down from the Ministry of Justice, which will have been drawn up by the information-gathering system that you have just been talking about, otherwise there is no point in it.

Maria Eagle: With respect, I think that there is a point to these changes because they will ensure that there is better monitoring of what currently happens, and that better information is available both to policy makers and sentencers, none of which will impact on the individual sentencing discretion of either the magistrate or the judge in a particular case to do justice. Judges will not be fettered in any way by the provisions in the legislation.

Q 48

Edward Garnier: But clause 107(1)(a) says that every court must follow any sentencing guidelines. Those sentencing guidelines will be informed by the resource information that someone has gathered.

Frank Cook: Mr. Garnier, you pose the questions and then express dissatisfaction with the answers.

Edward Garnier: I am just testing the answers with further questions.

Frank Cook: Just a moment, we can always test them in Divisions at a later date. I am afraid that you must live with your dissatisfaction for the time being.

Q 49

Alun Michael: I want to raise three points. Again, I am conscious that our time is limited, so if you want to give a headline and expand afterwards, I will be happy with that.
First, in the information that you have given to the Committee on the assessment of the impact of the Bill, I was rather concerned to see, in the reference to the sentencing council, a lot of emphasis on closer adherence to sentencing ranges. As a member of the Justice Committeeyou are right to think that that Committee could be of great assistance to Ministers and officials if that opportunity is takenI ask whether it is not in the interests of effectiveness to reduce reoffending? It is the effectiveness of sentencing that should be emphasised rather than narrowing ranges. That seems to go against what you have been saying to us.

Maria Eagle: It is correct that the more information that sentencers have about the efficacy of sentences that might be available to them, the better positioned they are to make their judgments in individual cases. That will not be tied into saying in this particular instance that only a certain type of sentence will be available according to available correctional resources.

Q 50

Alun Michael: I would be a lot happier if that were visible in what the Department is saying about the intentions. I support the idea of the sentencing council. Clearly, the use of data to ensure that sentencing is effective is the whole point. Again, we have a majority of judges, to which we have already referred. I cannot say that that reassured me. In fact, it had the opposite effect. We need people who will be critically examining the evidence on what works within the sentencing system. In a recent Justice Committee, we heard from the previous Lord Chief Justice about the lack of confidence of judges in community sentences. We have also heard about some recent research on the lack of knowledge of community sentencing. That might explain why we have a lot of ineffective sentencing.

Maria Eagle: I hope that the extra availability of information and monitoring will make the effectiveness of sentences much clearer, more transparent and more open to sentencers to see.

Q 51

Alun Michael: But it will not happen by osmosis, will it? It will not happen by inputting data that is looked at by a group largely consisting of judges. It needs to be clinical.

Maria Eagle: It will consist largely of judges in the sense that there will be one more judge than lay members, but there will also be a lot of involvement from other experts.

Q 52

Alun Michael: That brings me to the other point. How are we going to make sure, given that it is only a minority of members who will provide that clinical examination of what works, that those appointments will be given to questioning, evidence-based individuals who provide that necessary challenge?

Maria Eagle:I am certain that when appointing the non-judicial members, the Lord Chancellor will have that very much in mind. It is also the case that we will be boosting the capacity of the bodythe sentencing councilover that currently available to the Sentencing Advisory Panel and the Sentencing Guidelines Council, to increase its capacity to research and analyse what is happening and what the implications are. A greater inherent capacity will exist to produce some of this work, as well as relying on the non-judicial members of the council itself.

Q 53

Alun Michael: And there will be the resources to do so?

Maria Eagle:Yes.

Frank Cook: Mr. Howarth, I think that Alun Michael shot your fox. We shall now move on to death certification.

Q 54

Brian Iddon: I want to refer to clause 19. I welcome the attempts to improve the accuracy of death certification, particularly with regard to after-use of death certificates. My hon. Friend will know that epidemiologists are interested in death certificates, but my greater interest is in the misuse of drugs and, indeed, in those that cause death.
An important publication from St. Georges hospital is produced by gathering coroners information. It is on drug-related deaths as reported by coroners in England and Wales. I have had discussions with Hamid Ghodse, who is one of the compilers of that information, and he sometimes makes the criticism that death certificates do not always mention the drugs that people were using when they died. Therefore my question to the Minister is whether any consideration has been given to making sure that the medical examiner and even the death certificate has proper and accurate information with respect to the drugs that the person was on before death?

Bridget Prentice: To be honest, we have not looked at that issue in terms of the way in which the form would be set out. However, we are obviously having discussions with both the coroner and medical examiner fraternity as to whether they should specify what drugs have been used. Certainly, on Second Reading, the hon. Member for Wyre Forest (Dr. Taylor) made some telling remarks about some of the information that is put on death certificates. At the moment, it would clearly not be acceptable under the new system.

Brian Iddon: I think that I am flagging up a point of discussion in Committee.

Q 55

David Howarth: The question on data sharing is not whether it is always a good or bad thing because obviously it is sometimes both; the question is why the provisions of the Bill are drawn so broadly? Why are they drawn up to allow any person to share any data on the basis of any Government policy, regardless of what any enactment says, apart from the Regulation of Investigatory Powers Act 2000? Why does the Bill allow data sharing to include using data for purposes entirely different from those for which the data was originally handed over? That is not information sharing; it is something quite different. The Bill allows the organisation that originally collected the data, without any other organisation being involved, to be authorised to use the information for another purpose. Surely that is all far too broad.

Bridget Prentice: I say gently to Mr. Howarth that he is exaggerating the situationit is not quite as all-singing and all-dancing as he has described. The inclusion of this part of the Bill is entirely a result of the review by the Information Commissioner and Mark Walport, who pointed out that there is currently a great deal of confusion about the law concerning data sharing. For example, some are overly cautious about sharing data that they are legitimately able to share, while in other cases where it would be good to share data, there are legal impediments to doing so. That is why this part of the Bill has been drawn in the way that it has. Also, we have always said that if we want to make requirements about data sharing, they would have to be in primary legislation. That is why the provision in the Bill is so detailed.

Q 56

David Howarth: The Thomas and Walport report said that there should be a fast-track process for allowing data sharing, but only in specific circumstances. The trouble with the Bill is that it is not specific at all; it is enormously broad. They also said that they did not think that the fast track should be allowed to facilitate big changes in Government policy, such as getting rid of the existing safeguards on the data collected for the purposes of identity cards and so onDNA or medical records. There is no such safeguard in the Bill. It seems to me that the Thomas and Walport report has been taken as a starting point, but the Bill goes way beyond that.

Bridget Prentice: I am not sure whether it does, and I am not sure whether the Information Commissioner would agree with you that it doesin fact, I think that he would take quite a different view. The Bill does not actually allow for indiscriminate data sharing across Whitehall or across public authorities. The order-making power permits the Minister to bring forward specific proposals under specific circumstances, so it is not as all-encompassing as you describe.

Q 57

David Howarth: But the circumstancesthe pursuance of any Government policyare not specific. Obviously, the Government do not have to tell anybody what their policies are; in fact they could act in pursuance of some new policy that they have just made up.

Bridget Prentice: One of the aspects of this Government is that we are constantly telling people what our policies are.

David Howarth: You do not have to.

Bridget Prentice: I dare say, but it is generally not good government not to tell people what the policy is.
The order must be specific, and say what information must be shared, why it must be shared and with whom. That is fairly specific, and it needs to be proportionate too. Of course, it would also have to receive scrutiny under the privacy impact assessment. Having all those things in place should reduce the concerns that you have about it being too all-encompassing.

Q 58

David Howarth: What about sharing information with private sector organisations, which are not covered by human rights legislation, for example? Surely that goes too far. If that is to be done, it should be done by primary legislation or nothing.

Bridget Prentice: That issue about private sector organisations is important and the Minister, therefore, would have to be very concerned about allowing information to be shared with the private sector without a very good reason. That would have to be taken into account.

Q 59

Alun Michael: Briefly, there are some constructive suggestions made by the Information Commissioner in a note to the Committee, particularly in relation to linking the data-sharing code of practice explicitly to the information-sharing orders. Given that simplicity and getting the balance right is the challenge with all of this, will she take those points on board and consider the other points in his memorandum?

Bridget Prentice: I certainly will. I met the Information Commissioner to discuss the Bill and I am happy to consider those issues further. The Information Commissioner has also said that he would be more than happy to meet members of the Committee if we wish to discuss some of these issues in detail.

Frank Cook: We have come to the end of the time allotted for the Committee to ask questions of these witnesses. Thank you very much for your attendance. Please could the next witness take the Mastermind seat.

Frank Cook: Professor Jeremy Horder, may I welcome you to our consultations this morning? Professor Horder is from the Law Commission, so he has a lot to answer for and I am sure he is keen to set about answering.

Edward Garnier: I do not think Professor Horder has anything to answer for.

Frank Cook: From you?

Q 60

Edward Garnier: In relation to what is to be found in the Bill.
I wonder whether I could ask you, Professor Horder, to concentrate on part 2, chapter 1, which deals with murder, infanticide and suicideit is the part of the Bill with which you would be particularly concerned. I mean this in both senses of the wordconcerned with and concerned about.
I will not read into the record all that you have said in your memorandum but I wonder if you could give us a brief outline of your worries about the shape of the provisions in this section of the Bill. You have some quite fundamental concerns, I think, about the way the Bill is currently drafted.

Professor Horder: May I start by saying it is a great privilege to be here? I am delighted to be invited to try to give you some assistance on the Bill.
I think you have had my written evidence; I would like to make two main points about the Bill. Clearly, a good deal of it is based on the Law Commissions recommendations. Unusually, the Law Commission looked at this twice within a short period of timeonce in 2004 and then again in 2006. As a result of that, the diminished responsibility provisions, which are in this part, largely follow the Law Commissions recommendations and those were based on wide consultations, as I indicated. I am not worried about those particularly, although it is possible that others may have some concerns. I want to concentrate, if I may, on provocation; reflection on at least some of the provisions would benefit the changes as a whole.
Perhaps I could just raise this issue of loss of self-control, which I know is a vexed one. I would just like to say a brief word by way of background. Loss of self-control has never been defined as such, in law. It conjures up an image of someone going berserk or something of that kind, completely losing all ability to control themselves, but it has never been as narrow as that. It appeared in the Victorian period, like a lot of self words such as self-restraint, self-denial and so on. Before that time, the law just used phrases like heat of blood, and so on. That is important because a lot of cases will involve instances where someone did somethingthey were affected by the heat of the moment and they allowed it to affect their judgment in some way.
Loss of self-control will be a broad concepta lot of cases will pass the threshold by being ones where there is evidence of a loss of self-control in that broader sense. It is important to bear that in mind, which brings me to my first point in relation to clause 41(5) which states:
On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence
of loss of self-control,
the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
I have a concern about whether that is necessary. The explanatory notes say that it is to clarify the burden of proof, but I do not think there was much ambiguity about the burden of proof and where it lay in provocation cases. I have overplayed my hand a little in my written submission, but the point remains that there is no restriction under clause 41(5) on whose case it may be as to how this evidence is adduced. It could even be the prosecutions evidence.
One could have a case where an armed officer is charged with murder, that officer wishes to be acquitted on the grounds of self-defence and the prosecutions case is that the officer lost his or her temper, acted disproportionately and should for that reason be convicted of murder. One of the curious features of the way this clause operates is that, quite conceivably, the prosecutions case would amount to sufficient evidence adduced to raise an issue and so on. That would mean, according to this, that the jury must assume the defence is satisfied, which means, as a result of subsection (7), that the defendant stands to be found guilty of manslaughter, which is inconsistent with their case as a whole because they want to say that they are not guilty of anythingthey claim self-defence.
I am not saying that you cannot get around that, but there is something curious about the way it is set up, and I do not think that that subsection is needed. If you delete it and then you put in subsection (6)I am sorry if this is a bit detailed for the purposes of subsection (1), that is, for the purposes of establishing the defence, sufficient evidence is adduced to raise an issue and so on, that will pretty much get you where you want to go, without using presumptions and so on.

Q 61

Edward Garnier: Is there another way of dealing with that? If you look at amendment 2, you will see that it states:
Clause 41, page 25, line 18 after adduced.
I make no claims for originalityand you must not accept the blame for thisbut I drew that from your submission. Do you think that that amendment would assist in making this Bill marginally better?

Professor Horder: I think that it would. It might be even simpler just to get rid of that subsection altogether. I am not sure that it plays a useful function. I said in my evidence that I was a little uneasy about linking the introduction of a defence solely or mainly to evidence produced by the defence. That goes slightly against the grain. One could do it in that way, but another way, as I have just indicated, is to get rid of clause 41(5) entirely. That is something that might be considered, because I am slightly concerned about how these cases are going to run when it is the prosecutions case, oddly enough, that there was a loss of self-control. Equally, your amendment might meet the case.

Q 62

Edward Garnier: I know that we are short of time and I do not want to be unfaithful to your written submission, which we have. Perhaps I can move you on to the slow-burn issue, where we deal with the proximity point about whether the loss of self-control has been aroused. I ask you to look at clause 42(3) which says:
This subsection applies if Ds loss of self-control was attributable to Ds fear of serious violence from V against D or another identified person.
No time scale is put there, and I wonder, considering amendment 3, whether you think that that is a sensible way forward to limiting the ambit?

Professor Horder: That is an interesting proposal, and I would need to think about it more. It would draw the law a little closer to the position that now obtains in Scotland, where there is a requirement of suddenness, but understood more broadly than the way in which it was understood here, when it related to loss of self-control. There is no loss of self-control requirement, but there is a suddenness requirement in Scottish lawI think that that is the position.
Whether or not that is so, the proposal would try to narrow the time frame, which would be helpful. That is necessary because it is unclear under the present law what the justice is of allowing someone to brood for days or weeks and then, when they come across the ultimate victim, explode with rage just from seeing them. There is no fresh provocation. Many people would call that a revenge killing, despite the ultimate loss of self-control. Under the old law there would have had to have been a continuing heated blood episode during which the person was killedyou were not allowed to calm down and then boil up again. That is the concern and that clause might well meet the point.
The only issue would be of over-complicating the law if we had too many of these kinds of amendments. It is a difficult area. One can see how the law ended up stating that there must be a sudden loss of self-control; it is trying to meet the point that you are making here.
I am concerned, though, about what the courts will do when confronted by cases where there is forearmingwhere someone goes off to get a weapon before coming back and then killing the victim. What we hoped in the commission was that that would be dealt with by the objective question of whether a reasonable person might have done as the defendant did. While focusing on the loss of self-control, one must bear in mind that that is always there as a safety net or long stop. Juries will not take the view that reasonable people will go off and forearm themselves heavily in order to be ready for a confrontation; that is not a reasonable thing to do.

Q 63

Edward Garnier: You also have some concerns about the sexual infidelity issue referred to in clause 42(6)(c).

Professor Horder: Yes. My concerns so far are about tweaking or reshaping the law a little. I do not think that they are of as much fundamental importance as this one. This has been controversial within the legal community and beyond.
I have made various, perhaps rather disparaging, remarks about clause 42(6)(c). Now, having reflected on it further, I wonder whether it is sensible to put in primary legislationhard lawthe matters concerned in clause 42(6). Would it not be better if those are set up as guidelines for judges, as things to which they should refer before they direct the jury, as is commonly the case anyway? Would it not be better if they agree with counsel beforehand exactly how they will direct the jury on provocation, and on what they will say?
There is a risk that clause 42(6)(a), (b) and (c) are micro-management of the judicial direction to the jury, and they might be better purely as guidelines. There is a broader issue about clause 42(6), but clause 42(6)(c) is too categorical in its terms. In particular, the idea of something that is said constituting sexual infidelity is a rather curious one; I wonder whether that is, in fact, what is being aimed atothers may be able to speculate on that with a greater degree of information than I can.

Q 64

George Howarth: Where does intoxication fit in with loss of control?

Professor Horder: The traditional view has always been that in deciding whether clause 41(1)(c) is satisfiedthat a person of the defendants sex and age, with a normal degree of tolerance and self-restraint, might have reacted in the same waythe judge will automatically say to the jury that intoxication must be disregarded, and you would not need to do anything to ensure that. For a belt-and-braces approach, you could stick something in on that, but it is second nature to judges to say that that should be disregarded. That refers, of course, to voluntary intoxication, as it is a different matter when it is involuntary, but we can leave that to one side.
However, there has always been a question mark over whether intoxication is relevant in deciding whether there was a loss of self-controlthe old, co-called subjective conditionand whether in fact that was produced in part by intoxication. There is some authority, although not very satisfactory, to the view from the beginning of the 20th century that stated that you do take intoxication into account when deciding whether someone in fact lost their self-control. There is some authority to that effect, although it has not been tested in the courts since, as far as I know, and it would be interesting to see what they would say about that.
That might sound worrying, but the point to grasp is that whether someone feared serious violence or lost self-control are purely matters of empirical fact, so anything that led or may have led to the loss of self-control is relevant to the establishment of that fact, including intoxication. I do not think that one need worry, because the defendant is in a real dilemma here. If they say, The reason I lost self-control was because I was intoxicated, they will get caught when the swing comes around on the objectives point, because the judge will say, Aha, a reasonable person would not have done as you did. So we are probably alright on that point.

Q 65

David Howarth: I have two questions. My first is on loss of self-control and the nature of it, which has never been defined. If loss of self-control is quite an easy test to fulfil, how will the clause as drafted lead to 10 to 20 more convictions for murder a year, which is what the Government claim it will do? Where would those extra convictions for murder, as opposed to manslaughter, come from?

Professor Horder: There is an element of speculation here. I listened to what the Minister said about that issue and did not disagree with anything she said. I think that the number of cases in which the question will be whether self-control was or was not in fact lost will be minuscule, or at least very small.
Without wishing to sound like a Government spokesperson, I will say that the Bill is designed to tighten up the law to get rid of the cases that are an affront to the justice system. In such cases, the defence is getting in front of the jury, where it should not be, and they are acceding to it not because the jury lacked common sense, but because the way the law is structured means that the judge might give it disproportionate emphasis by mentioning it in the way the law requires him to explain it, and the jury might understandably be misled into thinking that the defence applies in some way, and that results in injustices.
In general terms, I think that the Bill addresses those concerns. I do not want to disagree in any way with what the Government said about the numbers of convictions likely to be affected, but it is to a certain extent a matter of speculation. We do not know whether those clauses might result in the defence being more inclined to plead it than it has hitherto been. I simply do not know.

Q 66

David Howarth: What you are saying would be achieved simply by subsections (5) and (6) of clause 41, or subsection (6) as you would redraft it, because that would take the ridiculous cases away from the jury and there would be no need to do anything at all.

Professor Horder: If you mean that that is the only clause in which we need to reform provocation, I am not sure that that is right.

Q 67

David Howarth: No, I am talking about the effect that you mentioned.

Professor Horder: It would have the chilling effect in those terms, but the Bill rightly addresses other issues on the kinds of characteristics that can be relevant, which are mentioned in clause 41, and of course the broadening of the defence to include fear of serious violence cases. That is an important step forward, and it is just not credible that the common law could take that step now. There was an opportunity back in the 50s, but that will not happen again in common law, so in that sense justice needs to be done through legislation.

Q 68

David Howarth: That would reduce the number of murder convictions rather than increase it.

Professor Horder: That may be right, but, ironically, it might increase the number of manslaughter convictions, because there may be cases in which the jury splits the difference. That raises some concerns, but it is difficult to predict the exact result in the courts. I do not think, however, that the impact will be huge.

Q 69

David Howarth: That was the first point. The second point is about the meaning of clause 42(4)(b). It sets out the defence, whereby the thing
caused D to have a justifiable sense of being seriously wronged.
How do you think that will be interpretedespecially justifiable and seriously? Are they questions for the jury, for the defendantthat the defendant thought it justified and seriousor for the judge, whereby he could take the case away from the jury on the point that he thought that the proposal could not be justified or count as being serious?

Professor Horder: The straightforward answer is a mixture. It is a question for the judge in the initial case of whether to leave the issue to the jury, because he must decide whether a properly directed jury could conclude that the defence appliesmeaning the entire picture, including whether those words might be satisfied. In that sense, as a threshold matter, it is a concern for the judge. But, once it has passed the judge and is in the realm of the jury, they will have to consider whether the words are satisfied.
You asked, what does that mean? It means that, rightly, there will be more of a burdennot legal but tacticalon the defendant to explain himself or herself, and to answer the question, Why did you respond in this way to the words, conduct, whatever it might be? Give an account that gives the court a sense of why there was a justifiable sense of being seriously wronged in the way that you reacted or took what was said or done. Currently, that burden does not really exist at all. As soon as there is any evidence of provocation, the judge leaves the matter to the jury and the defendant is not called on, tactically or in any other way, to explain themselves.
By that I do not mean that there will be undue pressure to give evidence when there would not otherwise be. I am talking not about inroads on the right to silence, but about a general tactical matter. It is entirely reasonablefrom the viewpoint not just of victims families but of the jury and the court as a wholeto expect the defendant to give some account of why he or she responded lethally, and the provision will do something to achieve that.

Frank Cook: In the limited time available, I want to move on to assisted suicide.

Q 70

Brian Iddon: On clause 46, do you know the Governments motives for rewriting the language? In the words of the explanatory notes, it is to modernise the language, but do you agree that the clause simply restates the existing law and does not change it?

Professor Horder: If there is a change, it is not significant. Modernisation always involves at least some change, otherwise what is the point? I think, however, that the measure is consistent, and I support it because its use of language is consistent with that which the Law Commission has recommended across the board when someone contributes to another persons crime or, in this case, act of suicide. We, at the Law Commission, after extensive consultation identified encouragement and assistance as the essence of what is going on and got rid of the language of aid, abet, counsel and procure. As you would expect, judges have bent those words into shape so that they will work and just about pass muster, but from time to time, there will inevitably be cases that put pressure on the meaning of those words. One keeps having to go back to what was meant by them in the 1861 statute, and even before that, since that was only a consolidating statute. There is still a debate about whether it was meant to just restate the common law or do something new. We need to get past that debate and use thisI believemore modern language. Although I accept that there may be some changes that have not been foreseen, we have spent enough time looking at the meaning and scope of this wording to be confident that the changes that are made, if any, are minimal.

Q 71

Brian Iddon: In your estimation, would that not lead to an increase in prosecutions?

Professor Horder: I am not sure that I am competent to answer that question. If it is not intended to do that, and I do not believe that it is, it would be rather a surprise if that was the effect that it had. In any event, I am not sure that there is any extra scope or range that a prosecutor could latch on to. It is always possible that if you modernise wording people suddenly understand it and start to use the law more. That is conceivable, but we all know that prosecuting in these cases is, or may be, an extremely sensitive and difficult matter.
Let me give you an example of when I think that the wording has been understood. We will all remember that incident reported in the newspapers when a young man, I think, was standing on the side of a building considering jumping off and the crowd below was shouting, Go on! Jump! Do it! The police got very cross and said, Although that is despicable and disgraceful, there is nothing you can do to these people. That is completely wrong. Of course you can prosecute them. You can prosecute them for aiding and abetting suicide, but the language of aiding and abetting does not sound right because it makes it sound as if they were up there giving him a shove or something. So, if senior police officers can be misled by this language into thinking that no prosecution can be undertaken in such a case, we believe that the language of encouraging and assisting will make it crystal clear that in, such cases, if you can arrest someone, you can prosecute.

Q 72

Brian Iddon: Young peopleteenagers in particularoften write poetry, song lyrics and other material that has a feeling of death or helplessness about it, and post it on a website. Other young people have access to those postings and might be encouraged to attempt suicide. Would the poster of such information be liable to prosecution under clause 46?

Professor Horder: I hope that that would not be the case. That is not to say that I approve in any way of the publication or dissemination of that sort of dark material, as one could call it. But, one has to rely on proposed new subsection (1)(b) in clause 46, which states that the act must be intended to encourage or assist a suicide or an attempted suicide. I will not pretend to be at the cutting edge of contemporary culture, but my understanding is that that sort of posting of music, lyrics or whatever is not intended to produce that effect. There may be extremely depressing songsthere is a long tradition of thatbut I do not believe that the material in any of these instances, no matter how many people may have taken it as their cue, was ever intended to have that effect.

Q 73

Brian Iddon: That kind of freedom of expression is, in your opinion, protected under the law.

Professor Horder: That sounds like an invitation to hang myself out to dry, but yes, I believe that it is. It is protected by the need to prove intention in that clause.

Q 74

Edward Garnier: I take on board all that you say about proposed new subsection (1)(b)the express requirement to prove intent to encourage or assistbut do you think that the use of capable of encouraging or assisting in proposed new subsection (1)(a) and elsewhere below is apt to assist? Is it not adding a layer of froth or blancmange? Why do we not just say, does an act that encourages or assists, rather than use the words, capable of? The judge will make a decision about whether the evidence is capable of proving the particular element of the offence, and it will be for the jury to decide whether it does so in fact, but we see capable of encouraging and capable of encouraging or assisting throughout this set of clauses on suicide.

Professor Horder: The same phrase appears in the Serious Crime Act 2007 and also in our recommendations for participating in crime more generally. The issue is that these offences are committed, as you know, in the inchoate mode, as we lawyers say. So you do not actually have to have assisted or encouraged to commit the offence. In other words, going back to the example I was talking about a moment ago, where people in a crowd are shouting to the person up above, it would be virtually impossible to do anything in a case like that if you had to show that their voice carried all the way up there and was heard by the person and they could say, Yes, it was his voice I heard.

Q 75

Edward Garnier: The problem relates to the city of Derby. The superintendent of the Derbyshire police force said that Derby lost its humanity on that day. Whether or not that is a sensible thing for him to have said is neither here nor there. However, there could be an issue, surely, in a case like thatif you happened to light upon one, two or three of the individuals in the crowd and brought them to court and prosecuted them under this provisionabout whether they actually intended something or whether they were just mouthing off and about whether they had the requisite intent to encourage or assist.

Professor Horder: That would certainly be an issue, but that is the 46(2)(b) issueisnt it?rather than a 46(2)(a) issue. In other words, it is an issue about whether there was an intent to encourage, not about whether they had done an act capable of encouraging. If they are shouting, Jump!, that is certainly an act capable of encouraging, I would have thought.

Q 76

Edward Garnier: Surely, the better question to ask in that circumstance is, Did what they shouted encourage or assist? Of course, one can only do that by inference, because one does not know what is inside the dead persons mind.

Professor Horder: That is the difficulty, really. I think that we wanted to avoid a lot of cases that would be factually too difficult to determine beyond reasonable doubt, or one way or another, about whether there was encouragement or assistance.
Let us take a silly example. If two people wish to assist someone to commit suicide and both, unbeknown to each other, put a bottle of pills next to the persons bed and the person takes one lot of pills but not the other and it cannot now be determined whose pills they were, it would be strange, in a way, if both of them were not in the same position. They both did an act capable of assisting the suicidethat is what they did wrong in terms of the lawand it should not really matter which one actually did assist the suicide, because in a way it is a matter of chance. Who knows who it turned out to be?

Q 77

Edward Garnier: It matters a lot to the two individuals who might be prosecutedone without the intent and one with the intentand, of course, the prosecution

Professor Horder: I am assuming that they both have the intent. Let us say that they both have the intent. They both put the pills on the bedside table for exactly the same reason, but without realising that the other bottle that happens to be there is there for the self-same purpose. That is why I say it is a rather silly example. But in a way there is an analogy with the Derby case, because lots of people were encouraging.
The irony is that, the more people there are encouraging, the harder it is to say that any one of them did encourage. As a matter of proof, it is difficult to say, then, is it not? That is why we think that, in terms of the focus initially, it is clearer and simpler to say that there is an inquiry in two parts here. First, was there an act capable of encouraging? And if someone shouts Jump!, that is certainly an act capable of encouraging. Secondly, under 46(2)(b), you have to ask whether that act was intended to encourage. It may very well be that, in that case, the person would say, Oh, I just shouted the words because everyone else was shouting them. I am a bit slow that way. I did not realise.

Q 78

Edward Garnier: Surely you are going through the same intellectual hoops as you would under section 2 of the Suicide Act 1961, but just adding complications. Everyone who needs to know knows what section 2 of that Act means and how it can be explained to the jury, do they not?

Professor Horder: That is a bold assertion.

Q 79

Edward Garnier: I have only got two minutes.

Professor Horder: We would, broadly speaking, be in favour of updating this language so that it is consistent with what we are recommending across the board when person A becomes involved in the perpetration of a crime or, in this case, a suicide by another person. We think it makes sense to have the same language applying across the board. We saw no reason, here, to say anything different.

Q 80

David Howarth: Can I move you on to 2A, which deals with the further rules on acts capable of encouraging or assisting? What is the thinking behind 2A(2), which says that
Where the facts are such that an act is not capable of encouraging suicide, for the purposes of the act it is treated as encouraging suicide if the facts had been as the defendant believed them to be at the time of the act?
Is that not going back to the days of impossible attempts?

Professor Horder: It is, as you know, the law that you can attempt the impossible. That is an important principle, because if I am right about what is being said in that clauseI have not had cause to look at this for some considerable timeit means, to carry on with the example of putting the pills on the table, that if it turns out that you put the wrong pills out and they are just a placebo and would not do anything to anybody, but you do not know that, you are caught by 2A. So as long as you believe that they will be capable of assisting and encouragingwhich you do, because you think they are whatever it is you are putting on the tablethen that should be sufficient. We do not want to go through all that horrid case law yet again

Q 81

David Howarth: No, we do not. But similar questions arise. What if you believe that you could do it by thought transference or witchcraft?

Professor Horder: That is a sort of tutorial question that one asks students.

Q 82

David Howarth: I am asking you.

Professor Horder: The great thing about tutorials is that you can ask questions that you do not know the answer tounlike lawyers. I think that, if I were to venture a solution, something has to be rationally capable of doing that. I do not believe that English juries would take that view in respect of thought transferenceif anyone believes in telekinesis, would they raise my right hand?and those kinds of things.

Frank Cook: Do Members have any further questions for Professor Horder? That brings us to the end of our business for the day.

Ordered, That further consideration be now adjourned. (Ian Lucas.)

Adjourned till this day at Four oclock.